Sanwarmal and Another vs State of Rajasthan

Mahendra Bhushan Sharma, J.—The learned Chief Judicial Magistrate, Jaipur under his judgment dated February 27, 1979 convicted each of the accused-petitioners Sanwarmal and Jitendra Singh u/s 7/16(1)(a) of the Prevention of Food Adulteration Act, 1954 (for short ''the Act'') and sentenced each of the accused-petitioner to undergo one year rigorous imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine, each of the accused-petitioner was further to suffer six months simple imprisonment. The accused-petitioners filed an appeal in the Court of learned Sessions Judge, Jaipur City, Jaipur which was transferred to the Court of learned Additional Sessions Judge, No. 2, Jaipur City, Jaipur. The said Judge under his judgment dated June 10, 1981 dismissed the appeal so far as the conviction of the accused-petitioners is concerned but reduced the sentence to six months rigorous imprisonment and to pay a fine of Rs. 1000/- and in default of payment of fine to further suffer three months'' simple imprisonment.

There is a coffee house in Sheer Sagar Hotel, Jaipur which is situated near Polo Victory, not for away from the Railway Station, Jaipur City. Accused Petitioner No. 2 Jitendra Singh is the licencee of that shop and a licence No. 1037 was issued to him on November 17, i 976 by the Health Officer, Municipal Council, Jaipur, who was the licencing authority. The licence was granted for the manufacture of tea, namkin, dausa etc. and for the purpose of running a restaurant. The licence Ex. D 1 was valid for the year 1975-76. On October 12, 1976 Ram Gopal Sharma (PW 1), the Food Inspector, Municipal Council, Jaipur who had been notified as such under Gazette Notification (Ex. P 1), went to the coffee house at about 5 p.m At that time, accused-petitioner No. 1 Sanwarmal was present in the restaurant and was working in the shop. He gave out that the Jitendra Singh was the owner of the restaurant and on demand refused to produce the licence. The Food Inspector Ram Gopal Sharma noticed that there was curd (Dahi) in an earthen pot and it was kept on the counter and there was no indication on it as to whether the curd was of buffalo milk or of cow milk or of any other animal milk. He suspected the curd to be adulterated and purchased 600 gms. of curd by paying Rs. 2.10 paise as its price for analysis. The curd was taken in a clean and dry porcelain cup, was churned. It was divided in three parts. Each part was filled in a clean dry bottle and to each of the bottle 16 drops of formalin was added. Each bottle was wrapped labelled and sealed. The label in the outer cover of each sample was signed by the Inspector and the accused. A form No. 6 was prepared at the spot and the sample duly sealed was sent to the Public Analyst. It reached in the office of the public analyst on October 13, 1976, was analysed on October 21, 1976 and the Public Analyst under his report (Ex. P 8) dated November 13, 1976 found that sample is adulterated as it does not conform to the prescribed standards of purity. The result of the analysis is as follows:

Fat content - 3.8% Solids non fat - 8.6% Cane Sugar & Starch - Nil

After obtaining the sanction u/s 20 of the Act, a complaint was filed by the Food Inspector against the accused-petitioners and the learned Chief Judicial Magistrate after trial convicted and sentenced the accused-petitioners as aforesaid. The appeal of the accused as stated earlier was partly allowed, conviction was maintained but the sentence was reduced.

The case is post April, 1976 case and as such the provisions of the Act as amended by Act No. 34 of 1976 will be applicable. By that Act, Section 13 was substituted by Section 10 of that Act w.e.f. April, 1, 1976 and similarly other changes were also made to the Act including in Section 16 of the Act. Item A. 11.02.04 of Appendix-B of the Prevention of Food Adulteration Rules, 1955 (for short ''the Rules'') lays down the standard for curd (Dahi). Dahi or Curd means the product obtained from pasteurised or boiled milk by souring, natural or otherwise, by a harmless lactic acid or other bacterial cultural. Dahi may contain added cane sugar. Dahi shall have the same minimum percentage of milk fat and milk solid-non-fat as the milk from which it is prepared. Therefore, one has to look to the standards prescribed for buffalo milk, as there being no indication on the earthen pot in respect of the kind of milk whether it was buffalo milk or cow milk, it has to be taken as buffalo milk. We will have go far the standard prescribed for buffalo milk. Item No. A. 11.01.11 of Appendix B of the Rules lays down the standard for different classes and designations of milk. So far as the buffalo milk is concerned, in Rajasthan milk fat should be minimum 5.0 per cent milk solid-non-fat should be 9.0 percent. A comparison of these standards with those found by the Public Analyst in his report (Ex. P 8) dated November 13, 1976, will leave no manner of doubt that the curd (Dahi), sample of which was taken by the Food Inspector Shri Ram Gopal Sharma from the restaurant of which accused-petitioner No. 2 was the owner and at the time of taking the sample the accused-petitioner No. 1 was selling it, was adulterated as it does not conform to the prescribed standard of purity.

Mr. Tibrewal, learned Counsel for the petitioners has contended that there has been non-compliance of Sub-section (2) of Section 13 read with Section 9A of the Rules. He has also contended that the sample of curd (Dahi) was taken on October 12th, 1976 at 5.00 p.m. and the complaint was filed against the petitioners on February 5, 1977 and the accused-petitioners put in appearance on June 8, 1977. The delay, therefore, is fatal in this case as curd is such a food article that even if preservative is added to the sample it can remain fit for analysis for a maximum period of six months and a look is beyond it. Therefore, the delay has prejudiced the case of the accused-petitioners and no liability can be fastened on them. Mr. Tibrewal has also contended that the curd was not meant for sale and had only been brought therefore the purpose of weighing and, therefore, no sample could have been taken.

So far as the last submission of Mr. Tibrewal learned Counsel for the petitioners is concerned. I find no merit in it. It has come in the statement of Ram Gopal Sharma (PW 1) the Food Inspector that the accused-petitioner Sanwarmal was present there and was working in the shop and he gave out that Jitendra Singh was the owner of it. There is no dispute that is a hotel Sheersagar which also runs a kitchen for its customers who stay in the hotel The courts below after analysis of the evidence have come to the conclusion that Sanwarmal accused-petitioner was working in the restaurant from where the sample of curd was taken and that Jitendra Singh was the licences of that restaurant. In the revision petition, I find no reason to take a different view than taken by the courts-below.

Dealing with the argument that there has been contravention of Sub-section (2) of Section 13 of the Act, the learned Counsel for the accused-petitioners has contended that the Health Authority did not give a copy of the report of the Public Analyst to any of the accused-petitioners and thereby the accused-petitioners were denied their statutory right of getting the sample in the Court or with the Health Authority examined by the Director, Central Food Laboratory. It is also contended by him that Section 13(2) of the Act is mandatory and non-compliance with it renders the conviction illegal. Section 13(2) of the Act provides that on receipt of the report of the result of the analysis under Sub-section (I) to the effect that the article of food is adulterated, the Local (Health), Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. After the aforesaid provisions was brought on the statutes book w.e.f. April 1, 1976 by Act No. 34 of 1976, Section 10, there was corresponding change in the Rules also and Rule 9-A was inserted by notification No. GSR 4(E) dated 4-1-1977 (w.e.f. 4-1-1977). Rule 9-A provides that the Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name and address and other particulars have been disclosed u/s 14A of the Act. Rule 9-A thus was inserted to give effect to the provisions of sub Section (2) of Section 13 of the Act. Prior to April 1, 1976 u/s 13(2) of the Act, as it then stood before its substitution as stated earlier, as right was given to the accused to apply to the court to send the sample with him or with the Food Inspector to the Director, Central Food Laboratory for analysis, the report of the Director was to supersede the report of the Public Analyst. There was Rule 9-J in the Rules and there was divergent of opinion in the High Courts as to whether Rule 9-J was mandatory or directory. That controversy was resolved by the Supreme Court in the cases of Dalchand Vs. Municipal Corporation, Bhopal and Another, (he learned Court dealing with the question as to whether a particular provision in a statute is mandatory or directory held that:

There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between (he two is most important. The weighing of the consequences of holding a provision to be mandatory or directory is vital and, more often than not determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, through couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute.

The Supreme Court also held that Rule 9(j) of the Rules was directory and not mandatory In the case of Tulsiram Vs. State of Madhya Pradesh, the Supreme Court examined Rule 9-A of the Rules also and after referring to its earlier case of Dal Chand v. Municipal Council (supra) for parity of reasons contained therein held that Rule 9-A of the Rules was directory and not mandatory.

The learned Judge of this Court (Hon''ble N.M. Kasliwal, J.) in the case of Devki Nandan and Ors. v. The State of Rajasthan 1985 (II) FAC 149 examined the question as to whether Sub-section (2) of Section 13 of the Act at it stands now after its substitution w.e.f. April 1. 1976 is directory or mandatory. The learned Judge placed reliance on the case of Dal Chand v. Municipal Council (supra) and held Section 13(2) of the Act to be directory. The learned Judge after referring to Dal Chand''s case and after extracting the relevant portion of that case held as under?

In my view the provisions of Section 13(2) of the Act are not mandatory. However, whether the fact of non-compliance of the above rule was such as to wholly deprive the right of the accused to challenge the Public Analyst report, there would be just cause for complaint, as prejudice would then be writ large. In the present case admittedly Public Analyst report was not given to the accused person after the filing of complaint and as such there is a clear non-compliance of the provisions of Section 13(2) of the Act and the accused person have lost their right of making application to the Court to get the samples analysed by the Central Food Laboratory. There is a clear non-compliance of Section 13(2) of the Act and the prejudice to the accused persons is writ large.

Mr. Tibrewal, learned Counsel for the petitioner not with standing the above decision of this Court has contended that in view of the Supreme Court judgment in Tulsi Ram case (supra) Section 13(2) of the Act and at least a part of it, that a copy of the report of the result of the analysis that the article of food is adulterated must be furnished to the accused petitioner by the Local (Health) Authority is mandatory and in case a copy is not so furnished, it will be denial to the accused of his right to apply under Sub-section (2) of Section 13 of the Act to get the sample of the article of food kept by the Local (Health) Authority, analysed by the Central Food Laboratory. In the case of Tulsi Ram (supra) the Supreme Court after reproducing Section 13 of the Act in para No. 5, in para No. 7 held that-

Section 13(2) requires the Local (Health) Authority to forward to the person from whom the sample was taken a copy of the report of the Public Analyst, if the report is to the effect that the article of food is adulterated. The report is to be forwarded in such manner as may be prescribed, after the institution of the prosecution. Thereafter, the person from whom the sample was taken is given the right to apply to the court within ten days of the receipt by him of the copy of the Public Analyst''s report to get the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory. It is no longer open to the accused-vendor to wait till the very last minute to apply to the court to have the sample analysed by the Central Food Laboratory. If he wants to exercise the statutory right of having the sample analysed by the Central Food Laboratory he has to exercise that right by applying to the Court within ten days of receipt by him of the Public Analyst''s report."

"It is therefore, to be assumed that the report of the Public Analyst is to be made available to the accused-vendor at the commencement of the prosecution, that is to say, before the prosecution starts leading evidence in the case and in good and sufficient time to enable the accused to exercise his right of having the sample analysed by the Central Food Laboratory if he so desires it.

Sub-section (2) of Section 13 of the Act imposed a duty on the Local (Health) Authority in case the result of the analysis to the effect that the article of food is adulterated that after the institution of prosecution against the person from whom the sample was taken it should send a copy of the report of the result of the analysis in such a manner as has been prescribed. If we see the case of Dal Chand (supra) again the Supreme Court has laid down the guide lines for treating a provision to be mandatory or directory It has held that where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat the design, the provision must be held to be directory, so (hat proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. In my opinion the negligence of Local (health) Authority in not forwarding a copy of the report of the Public Analyst in case that is to the effect that the article of food is adulterated, to the person from whom the same was taken cannot be held to be contravention of mandatory provision as it will promote public mischief and cause public inconvenience and defeat the main object of statute. Therefore, Section 13(2) of the Act cannot be held to be mandatory and can be said to be directory and in such a case it is necessary for the accused to show that the prejudice has been caused to him in addition to non-compliance of the provisions and only then it can invalidate the act complained of. After the institution of a prosecution and if within a reasonable time, a copy of the report of the Public Analyst is furnished to the accused by the Court the accused can within ten days thereof exercise his rights under Sub-section (2) of Section 13 of the Act and request the court to send the sample with the Local (Health) Authority to the Director, Central Food Laboratory for analysis. If after having received a copy of the report of Public Analyst within a reasonable time, as stated earlier the accused does not exercise his right within ten days thereof u/s 13(2) of the Act, then the accused cannot be allowed to argue that his case has been prejudiced and therefore, he has been deprived of his right u/s 13(2) of the Act.

In the instant case it appears from the record that a copy of the report of analysis to the effect that the sample of curd was adulterated was not forwarded by the Local (Health) Authority to the accused. The learned C.J.M. has dealt with this argument at page No. 9 (bottom) and page 10 of his judgment. The learned C.J.M. observed that no application was filed by the accused under Sub-section (2) of Section 13 of the Act. It may be stated that the question as to whether a copy of the report of analysis under Sub-section (1) of Section 13 of the Act that the article of food is adulterated has been sent to the person from whom the sample was taken by the Local (Health) Authority or not is a question of fact. In this case it appears to have been raised for the first time before the learned C.J.M. Though, I do not agree with the reasoning of the learned C.J.M. that an application under Sub-section (2) of Section 13 should have been made, as the question of making any such application within 10 days would have arisen if the copy of the report would have been furnished to the accused, but in the instant case there is material on record that the copy of the report of the Public Analyst (Ex. P. 8) was furnished to the accused when he appeared in the court in pursuance to the summons. Even after getting a copy of the report of Public Analyst, not only within ten days thereafter but even during the trial no request was made, though a request could only be made within ten days of the receipt of the copy and not thereafter that the sample with the Local (Health) Authority should be sent to the Director Central Food Laboratory. In the absence of applying u/s 13(2) of the Act read with Rule 9A of the Rules it would have been open for the accused to raise an objection that Section 13(2) has not been complied with as no foundation for that objection had been laid. The accused has not been able to show in this case that his case has been prejudiced and non-compliance with Sub-section (2) of Section 13 of the Act, which is directory, along with the prejudice only invalidates the act complained of. Even assuming that as stated by the Food Inspector, he cannot say as to whether the Local (Health) Officer had forwarded any copy of the report of the Public Analyst to the accused-persons and that he had not forwarded in the instant case the sample was taken from the accused petitioners on 12-10 1976, it reached in the office of the Public Analyst on 13-10-1976 and examined on 21-10-1976. The complaint was filed on 5-2-1977 and the accused petitioner put appearance in the Court on 8-6-1977, i.e., within eight months of the taking of the sample and it is mentioned in the order-sheet dated 8-6-1977 that the copies of the papers have been furnished to the accused. It can, therefore, be said that within reasonable time after the prosecution, the copy of the report of the Public Analyst was furnished to the accused petitioners and within ten days thereafter they did not exercise their right u/s 13(2) of the Act The accused petitioners, therefore, cannot say that their case has been prejudiced because a copy was not supplied to them by the Local (Health) Authority.

The next argument of Shri Tibrewal, learned Counsel for the petitioners is that the curd is an article of food which cannot stay in its shape beyond a period of six months because the complaint was filed on 5-2-1977 and the accused only put an appearance after 8-6-1977, more than six months had been elapsed and as a result of delay the case of the accused-petitioners had been prejudiced. No useful purpose would have been served by sending the sample with the Local (Health) Authority as the curd would not have remained for analysis. In support of the submission, the learned Counsel has placed reliance on the case of Municipal Council, Delhi v. Shri Ghisaram 1976(1) FAC 75. In that case on September 20, 1961 Food Inspector took sample of curd of cow''s milk from the shop of the accused. The analysis was carried out by the Public Analysis on October 3, 1961 and the certificate was given on October 23, 1961. The fat content was found to be 11.6% and non-fatty solids 7.6%. The standard prescribed for a cow''s milk is 3.5% fats and 8.5% non-fatty solids. Thus, the sample of curd was far in excess of the standard in regard to fat and 12% below in regard to non-fatty solids. The complaint was filed on May 23, 1962, some 8 months and 3 days after the sample had been taken by the Food Inspector. On October 4, 1963, some 17 months after the complaint had been preferred in the Court, the respondent in terms of Sub-section (2) of Section 13 of the Act made an application for analysis of that part of the sample which was retained by the Food Inspector, by the Director of the Central Food Laboratory at Calcutta, and the report of the Director of the Central Food Laboratory was that the part was in a highly decomposed condition and thus obviously did not admit of analysis or was not in an analysable condition. The accused was acquitted by the Magi trate and the Municipal Council, Delhi filed an appeal against the said acquittal. Some experts were examined including Dr. Sat Prakash and the opinion of the experts was that a sample of curd properly sealed even without a preservative and kept anything upto seven days at room temperature varying from 27 centigrade and normally to 32 centigrade but in rare cases to 33 centigrade will still maintain the percentage of fat and non-fatty solids for the purposes of analysis, and though it may not be edible after 24 hours, it will still remain unchanged for the purpose of analysis in regard to its percentage of total fat and non-fatty solids. The experts also opined that in a sample of curd a preserving agent is added, it may maintain its total percentage of a fat and non-fatty solids contents for the purposes of analysis for say four months and if then the sample of this type is placed in refrigerator, it will keep such qualities for some more months, say another two months, which gives a total of about six months, during which period the sample will be available for the purpose of analysis without deterioration or decomposition affecting the same. In my opinion, firstly that this case has no application to the facts of the instant case because in that case on sample being sent to the Director Central Food, Laboratory, it was found that it was in decomposed condition and not fit for analysis and was not in a analysible condition. In the present case, such a situation has not arisen and the petitioner did not exercise his right u/s 13(2) of the Act even within 10 days the copy was given to him by the Court. As stated earlier, the complaint had been filed in this case within four months of taking the sample and the accused had put their appearance on 8-6-1977 on which date the copies of the papers had been furnished to them, including the report of the Public Analyst. They did not exercise their right within ten days thereafter. If having exercised their rights the Director would have found the sample of curd to be in decomposed state and not fit for analysis, the accused could have said that their case has been prejudiced but a person who does not exercise his rights u/s 13(2)) of the Act, he cannot be allowed to say that his case has been prejudiced or that it would have served no useful purpose if the sample had been sent to the Director, Central Food Laboratory for analysis.

Consequently, I do not find any force in this revision petition, it is hereby dismissed.